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State’s dangerousness law rarely invoked

August 22, 2013

Boston Globe, By Peter Schworm

In the 1990s, Massachusetts lawmakers, reacting to the slayings of several women by male partners out on bail in domestic abuse cases, passed a tough law allowing judges to keep such dangerous defendants behind bars. But today, 20 years later, the pioneering statute is seldom employed in such cases.

Use of the so-called dangerousness law is largely determined by whether the victim is willing to help police make a case against the abuser. If he or she is unwilling or too afraid, prosecutors rarely go forward.

“I’ve never seen a single one,” said Colby Bruno, senior legal counsel at the Victim Rights Law Center in Boston.

Without the cooperation of victims, prosecutors often assume they do not have enough evidence to convince a judge to order an alleged abuser to be held without bail for up to 90 days.

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Prosecutors, fearful of making a volatile situation worse, also give broad deference to victims’ wishes, relying on research that indicates they can best assess their own safety.

The law was not invoked last week, when Middlesex prosecutors chose not to seek a dangerousness hearing for Jared Remy after he allegedly assaulted his girlfriend, Jennifer Martel, 27. Remy was released without bail the night of the assault and again at an arraignment on Wednesday morning. He is charged with stabbing Martel to death the following day at their Waltham home.

Martel had not argued for Remy to be held. On Wednesday, she did not appear in court to extend an emergency restraining order issued Tuesday, the day of the first alleged assault. Prosecutors say their conversations with Martel were a prominent factor in deciding not to seek to detain Remy, even though he has an extensive criminal record and two previous allegations of assaulting women.

Without the victim’s willingness to share her fear and the reasons for it, prosecutors worry that they cannot meet the requirement of the dangerousness law, which requires “clear and convincing” evidence that the defendant poses a threat to the victim.

“It’s a very high threshold to meet,” said Ann McGonigle Santos, a Suffolk University Law School professor and a former prosecutor who specialized in domestic violence. “It’s a terrible thing: We have to put some of the responsibility on the victim to articulate their fear.”

Advocates say prosecutors’ reluctance to use the dangerousness law without a victim’s cooperation allows defendants to be freed with minimal restrictions, often creating an even more dangerous situation.

“We know once a violent offender has been arraigned, if they are released into the community with no restrictions, a terrible tragedy like the Martel murder can happen and will happen,” said Suzanne Dubus, chief executive officer of the Jeanne Geiger Crisis Center in Newburyport.

Dangerousness hearings are held to determine whether a defendant poses a threat to an individual or to society at large. Under the law, a judge can detain a suspect for up to 90 days if there is evidence that no conditions of release “will reasonably assure the safety of any other person or the community.”

Statewide, there were at least 1,830 dangerousness hearings held last fiscal year, a small fraction of the more than 235,000 criminal cases handled annually by state courts. There are no statistics reflecting how often dangerousness hearings are used in domestic violence cases, but lawyers and advocates agree that it happens rarely.

One of those instances involved Remy, who was held for 81 days in 2005 after he was charged with kicking, punching, and dragging his former girlfriend, according to court records.

But last week, prosecutors asked only that Remy be ordered not to abuse Martel, his longtime girlfriend and the mother of his 4-year-old daughter.

Dubus strongly supports the dangerousness law and said prosecutors need to recognize that many victims are too frightened and traumatized to cooperate against their abuser.

“I can think of no other crime where evidence is gathered and then prosecutors wait for the victim to say yes or no,” Dubus said. “They are often afraid to talk, afraid of the retribution they may suffer. They are asked to make life-altering decisions on the spot.”

Martel told police Remy grabbed her by the neck and head and slammed her into a bathroom mirror, but officers at the scene noted no marks on her head. Even with Remy’s criminal record, the lack of visible injuries would have made a judge unlikely to hold Remy under the dangerousness law, Santos said. On the evening of the assault, Remy was released without bail and ordered to appear in court Wednesday morning.

Martel’s mother said her daughter did not seek to renew an emergency restraining order at the request of Remy’s family. Remy’s mother had begged her not to file any kind of complaint, saying it would ruin her son’s life, said Patricia Martel, Jennifer’s mother. The Remy family has not commented on the assertions.

Given such pressures, an abuse victim cannot be expected to speak out against her abuser, when doing so could make the situation more volatile. Some advocates say it falls to prosecutors to intervene on the victim’s behalf.

“Prosecutors have to fight for victims,’’ said Mary Lauby, executive director of Jane Doe Inc., a statewide advocacy group. “That’s their job. In the absence of that, victims are left alone.”

A cruel aspect of the system, specialists say, is that the more abusers terrorize their victims, the less likely the victims are to speak out against them, in some cases making the worst offenders the hardest to prosecute.

But while prosecutors and domestic violence counselors sometimes have a better vantage point to assess abusive situations, advocates say that most victims are keenly aware of the danger they are in and that prosecutors should give their views strong credence.

“Only the victim knows how volatile things can get,” said Bruno, of the Victim Rights Law Center.

Prosecutors who seek to pursue cases against victims’ wishes risk alienating them from the legal process, specialists say, and intensifying feelings of powerlessness.

“They resent the process almost more than they resent the perpetrator,” Bruno said.

In defending her office’s decision to not seek bail or a dangerousness hearing for Remy, Marian T. Ryan, the Middlesex district attorney, said that research has shown that victims are generally the best judge of their own safety and that their wishes deserve careful consideration.

David Adams, codirector of Emerge, a treatment program for abusers in Cambridge, said abuse victims are pretty reliable judges of the risk they face and are well aware that cooperating with authorities could spur further abuse.

“The first person [abusers] are going to blame is their victim,” Adams said. “Overall, the best thing seems to be relying on the victim’s judgment.”

Advocates say that prosecutors are aware that victims’ decisions are often influenced by fear and regularly factor the risk of reprisal into decisions about whether to seek to have defendants detained. Even when prosecutors know a victim may be in danger, they may decide a dangerousness hearing is too risky.

“They know that without the victim, they are going to have a hard time with the judge,” said Laura Van Zandt, who directs REACH Beyond Domestic Violence in Waltham. “It’s a very delicate balance.”

Todd Wallack, Sean P. Murphy and John R. Ellement of the Globe staff contributed to this report. Peter Schworm can be reached at schworm@globe.com.